Do we need a “repeal amendment”?

posted at 12:00 pm on December 5, 2010 by Ed Morrissey

A couple of months ago, Randy Barnett at Cato proposed a new amendment to the Constitution that would give the states the power to repeal acts of Congress. It’s certainly an intriguing notion, if for no other reason than to note the hysterical reaction to it. Dana Milbank, Dahlia Lithwick, and Jeff Sesol manage to ignore the fact that the same document has been amended a number of times (seventeen since its initial adoption, most recently in 1992) to accuse conservatives of hypocrisy in proposing another change. Glenn Reynolds disposed with this notion with brevity earlier in the week, noting that the amendment process is actually part of the Constitution, and a lot more legitimate than muttering about “living documents,” emanations, and penumbras. There is no need for such logic-defying rewriting of the document to absorb issues like abortion and campaign finance restrictions when (a) the document’s own brevity speaks clearly enough on the limit of federal powers, and (b) the amendment process is available to those who wish to change or add to the Constitution. All it will take is two-thirds of Congress and three-quarters of the states to pass and ratify it.

That brings us back to the proposal itself. Barnett’s plan would allow states to band together to override Congress in an attempt to restore the balance of power between sovereign states and the central government. That should interest at least some of the states, but is this the best way to get to that desired end?

In its next session beginning in January, the legislature of Virginia will consider proposing a constitutional “Repeal Amendment.” The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Its text is simple:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

The Repeal Amendment should not be confused with the power to “nullify” unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.

Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.

This sounds good in principle, but could be a procedural nightmare once enacted. The first problem would be to get this amendment to the states for ratification. It seems unlikely that any Congress would produce a two-thirds vote to create a states veto. That leaves only a Constitutional convention, which might indeed pass it — along with a lot of other, perhaps unpleasant, amendments. Some believe that Constitutional conventions can be limited in scope, but we’ve only had one, and it replaced entirely the foundational document of the United States. It’s an opening to a lot of potential mischief.

Let’s say for argument’s sake that Congress approves and the states ratify the amendment. What happens when Congress passes a law? How long do the states have to get two-thirds of the legislatures to demand repeal? Within the same session? Four years? Decades? Does it proceed along the same lines as a Constitutional amendment, where the states have seven years to ratify a veto? If the time is limited to the current session, most state legislatures won’t have time to react, and future Congresses will simply put off most of their controversial measures until lame-duck sessions.

If it isn’t limited to the same session, then this will remove a great deal of certainty and stability from the American legal system and to acts of Congress, which is after all the people’s branch. Consider tax laws on which no one could rely, regulatory and deregulatory efforts that could take years to clarify, and then think how investors both here and abroad will react in that environment. And that isn’t even getting to the budget, which appears subject to this amendment as well. The states could force a shutdown of the federal government. This seems like a prescription not just for gridlock and instability, but also an invitation for an expansion of power for the executive branch to run the federal government by executive order and agency power.

The problem of federal overreach is real, but this looks like a poor solution to it. Those who want to see government restrained by the states would do better to repeal the 17th Amendment. Instead of requiring popular votes for Senators, go back to the original purpose of the Senate and let the states choose how to pick their Senators instead. Some might keep the popular vote in place, but those states concerned about federal encroachment on state sovereignty might return to having appointments made by the state legislatures, or governors confirmed by the legislatures. That would make the state itself the constituent of each Senator, and they could overrule the populist inclinations of the House by thwarting encroaching legislation.

That, too, has its drawbacks. Senators would be much less accountable to voters, having won their position not by popular ballot but through the favor of a governor or legislature. Party discipline would evaporate, which has its good points as well; Senators would not be accountable to a party, but to the interests of their state governments. Factions would form on the basis of regional politics and ideology rather than party, and the upper chamber would be much less susceptible to popular movements. Consider that in this past election, a Tea Party would have captured as many seats in the House as it did this year, but the results in the Senate would be much different. One would never see a Rand Paul, and possibly not a Marco Rubio, either, and Russ Feingold would probably still have his seat. Ron Johnson, a political outsider, would never have even been considered in Wisconsin for that position.

Still, that would be the most efficient way in which to restore the check on federal power that the founders envisioned when they created the bicameral legislature. It won’t take a cumbersome process that produces long-term instability to get it, either. And for the sudden love of the original document discovered by Milbank, Lithwick, & Co, it will remove one of those pesky changes to the Constitution that they suddenly find so distasteful.

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Comments

I actually do think there’s probably some inherent right to privacy in the Constitution, but whether or not it encompasses birth control or abortion is a much different and far more complex and interesting issue.

“I actually do think there’s probably some inherent right to privacy in the Constitution, but whether or not it encompasses birth control or abortion is a much different and far more complex and interesting issue.

Proud Rino on December 5, 2010 at 12:47 PM”

It’s called the Fourth Amendment. But I get your general idea. If the 9th and 10th Amendments were enforced/respected we’d have no Roe v Wade etc.

Excluding the “Bill of Rights” (the first 10 amendments) the Constitution has been amended 17 times in the 213 years since 1791.

Six, or 1/3 of those amendments, have been in my lifetime. As a Libertarian, that concerns me.

Our founding fathers deliberately made amending the Constitution a long and difficult process. Then to further complicate the process, they created a branch of the legislature, the Senate, responsible to the states with the intention that the Senators, not reliant on popular vote, could provide a dispassionate view of any potential changes to the Constitution.

Many Constitutional scholars believe that a fundamental shift in our government began in 1913 when the 17th Amendment changed the method of selecting Senators.

The Senators, now subject to popular election could no longer act as that moral and legal “brake,” although their six-year terms gave them some protection from hasty and popular recall.

It’s worth noting that the first amendment passed after the 17th was the 18th, Prohibition.

Would the 18th Amendment, poorly conceived and quickly passed, been approved if the Senators were still selected by the states legislatures? It’s an interesting subject for debate.

I personally believe the Constitution has become so easy to amend because too many Senators have essentially abrogated their role as a brake to the temporary exuberance of popular sentiment.

The states legislators have been selecting senators a lot longer than we have been voting for them.

Many people are not aware that the basis of our form of government is representational republicanism; we are a “democracy” only in the definition that our citizens have the right to select those republicans (small “r”) they best feel will represent them.

I believe we should be very cautious about what we add to our Constitution

(Repeal of the 17th Amendment) That, too, has its drawbacks. Senators would be much less accountable to voters, having won their position not by popular ballot but through the favor of a governor or legislature.

We really messed up the Founder’s design for our country. Here’s the way things used to work before the 16th and 17th Amendments.

The House acted as the will of the people, and routinely pushed (as now) for more spending on more things. The Senate, though, was beholden to the States and acted as a brake on spending for one very simple reason… Since the Federal Government couldn’t tax citizens directly, bills for the new laws would be divided up and sent to the states for payment. If the State couldn’t afford more Federal spending, it would direct their representing Senator to vote against passing the law. Senators who didn’t represent their state were recalled and replaced.

Since Senators are now elected by popular vote, they are no longer beholden to their respective states (other than to accelerate the spending process started in the House). As a result, there became a void of responsibility… and special interests stepped in and now run the Senate to the detriment of our country.

We should repeat the 16th and 17th Amendments, eliminating the power of special interests over Senators, and start putting the brakes on over-spending.

Having states directly elect senators would be terrible. I do not want one more level of corruption between me and firing My senator. Just elect senators that respect states righs!

GardenGnome on December 5, 2010 at 2:10 PM

Well then you don’t want a constitutional government. The 17th amendment was ratified in 1913 by Wilson and all but, nullified the 10th amendment. The founders wanted the states to be able to have their own power against a centralized government and the people voted on their district representatives to have the power against their views of a centralized government. Please learn your constitution.

I’m thinking that a 2/3 or 3/4 majority for levying taxes and a 50%+1 vote for cutting spending would be a nice amendment….

cthulhu on December 5, 2010 at 2:26 PM

Check out the Bill of Federalism then. Its tax amendment replaces the income tax with a national sales tax, forbids a VAT, and sets a 2/3 majority in both houses to create a tax or raise the rate, but it provides for no such majority to repeal a tax or lower a rate.

We should repeal the 17th Amendment, but fix the alleged problems that led to its adoption.

The biggest was uncertainty over “deadlocked” legislatures leaving a seat unfilled, such as when a state Senate favored one candidate, but its House of Representatives preferred another. In the amendment to repeal the 17th, expressly give each state legislature the power to write a law to deal with such situations. In my state of Kansas, we have 125 members in the state House and 40 Senators. Our legislature might give each Senator 3 votes to balance out the election. Or they might let the House have that greater weight.

Also, the amendment repealing the 17th should state unequivocally that only a state legislature has the power to elect a permanent Senator, and only the governor has the power to appoint a temporary one. There is no reason for a prolonged vacancy at all; let the governor appoint someone to serve until the legislature chooses a permanent replacement.

While we’re at it, let a legislature recall a sitting Senator by a 2/3 vote of one house and a majority of the other (except in Nebraska where there is no other house). Let them by law designate which is which if they want (House proposes removal by majority, Senate removes by 2/3 just like impeachment, for instance.)

The election of US Senators by state legislatures was the counterweight to the Supremacy clause. The 17th Amendment took that away, and the machine has been severely out of balance ever since.

Perhaps it’s time for the states to actually start taking a little control on this process. The governors should ask their representatives to come home for a meeting, get votes, in their states on the amendment, then tell their legislators, in Washington, the state wants this and put pressure on them to make it happen.

If, in fact, we are a representative Republic, the states should be truly have their view represented in Washington. Now, it seems, the representatives are more concerned about representing their party and the heck with their states.

It’s called the Fourth Amendment. But I get your general idea. If the 9th and 10th Amendments were enforced/respected we’d have no Roe v Wade etc.

JimP on December 5, 2010 at 5:08 PM

No, the Fourth Amendment protects against unreasonable searches and seizures, which means you can’t have a search or seizure without a warrant based on PC, although courts have correctly carved out a few exceptions to that, so they don’t need a warrant in exigent circumstances and other situations.

I don’t know if taking the 9th or 10th Amendment “seriously” would have prevented an opinion like Roe.

But if the 9th Amendment means anything, it means you have some kind of right to privacy, right?

There is a reasonable argument that maybe the ninth and tenth amendments really don’t mean anything, that they could both be “truisms”, which is what the Court said about the 10th Amendment in some…case that I can’t remember. Darby?

I mean, they don’t provide much guidance to judges, so SCOTUS tends to ignore them or assume they’re meaningless. Robert Bork has an interesting take on it, which I think is completely incorrect and totally nuts. I like Bork in most respects but his particular interpretation on the Ninth Amendment is bizarre.

There is a reasonable argument that maybe the ninth and tenth amendments really don’t mean anything, that they could both be “truisms”, which is what the Court said about the 10th Amendment in some…case that I can’t remember. Darby?

Although the intent of this proposal is good, it would be a dangerous thing to do. Article 5 of the Constitution states that the amendment process must be started by Congress, then given to the States. Otherwise, if the process is started by the states, the result becomes a Constitutional Convention. In a Constitution Convention, it need not be for one single amendment or subject. The result could be a disaster.

I would rather see states pressure their Congressmen into supporting such proposals, and even support an amendment with Congressional term limits.

The income tax with different proportions gives the federal government too much power to get their hands on cash. That is why the Framers made sure that any tax put upon the people would be done equally and the States then have to figure out how to collect their share. ajacksonian

You are so right. Add to the screwed up nature of our current system of taxation the huge amount of money that is collected by the feds and then sent as bribes back to the states. Let the states pay their own way and tax their citizens as appropriate and get the feds out of being the tax collector for the states.

If we’re not careful, we could end up with a judiciary that gives rights of citizenship to enemy combatants, or even an executive branch that usurps the prerogatives of the other two on an almost daily basis.

Actually, what’s needed is a way for the states to override the extra-constitutional judicial veto, short of amending the Constitution itself. The ultimate authority on what the Constitution means should the people themselves, or the states, not a handful of people in a body that has been deliberately insulated from political influence.

re: extra-constitutional judicial veto: Do you realize that no where in the Constitution is the Supreme Court given the power to declare laws passed by the Congress, or the People, as unconstitutional?

re: extra-constitutional judicial veto: Do you realize that no where in the Constitution is the Supreme Court given the power to declare laws passed by the Congress, or the People, as unconstitutional?

Seabecker on December 5, 2010 at 9:00 PM

That’s not what they do; they are the ultimate arbiter of cases that get appealed up the ladder. The end result is just what you described; however they don’t just declare this or that; they decide cases sent to them from lower courts.

Although the intent of this proposal is good, it would be a dangerous thing to do. Article 5 of the Constitution states that the amendment process must be started by Congress, then given to the States. Otherwise, if the process is started by the states, the result becomes a Constitutional Convention. In a Constitution Convention, it need not be for one single amendment or subject. The result could be a disaster.

I would rather see states pressure their Congressmen into supporting such proposals, and even support an amendment with Congressional term limits.

Seabecker on December 5, 2010 at 8:35 PM

The most dangerous thing about an “Article V” Constitutional convention is that there is no way to prevent it from proposing and adopting Amendments to repeal any existing Amendment.

Which means that while the libertarian types are proposing a “repeal amendment” to give the states more control over the federal government, the “progressives” will be proposing an amendment to repeal the Second Amendment, to give them more control over the peasantry. Followed by repeal of the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Amendments for good measure.

When you consider the Constitution a “living document”, the opportunity to cut out what you regard as “necrotic tissue” is probably simply too good to pass up.

Since there is really no way to limit what a Constitutional convention does, there is every reason to avoid having one if at all possible; it is a “nuclear option” on the document. The idea of a “repeal amendment” does not rise to the standard of proof I, personally, believe is necessary or desirable to engender the risk of such a convention being used by the self-defined “best and brightest” to make mischief, no matter what its avowed purpose was.

The solution to overreach by the Federal government is simple; fire the politicians who advocate it, and replace them with representatives who are not that overly ambitious.

Perhaps it’s time for the states to actually start taking a little control on this process. The governors should ask their representatives to come home for a meeting, get votes, in their states on the amendment, then tell their legislators, in Washington, the state wants this and put pressure on them to make it happen.

They dont have to tell their legislatures in Washington. All they have to do is call an article V convention.

re: extra-constitutional judicial veto: Do you realize that no where in the Constitution is the Supreme Court given the power to declare laws passed by the Congress, or the People, as unconstitutional?

That’s not what they do; they are the ultimate arbiter of cases that get appealed up the ladder. The end result is just what you described; however they don’t just declare this or that; they decide cases sent to them from lower courts.

Beg pardon, but it’s both. The Courts don’t strike down laws as unconstitutional until they come up in a court case they have decided to hear, but once they do, it’s even more effective than a Presidental veto, because there is no mechanism to override it.

When you look at the outright criminality involved with the 14th amendment (which still stands despite being blatantly unconstitutional), this process is fraught with existential peril.

Rebar on December 5, 2010 at 12:08 PM

The criminality was with the Southern States, who violated the validly passed and ratified 14th Amendment, and instead instituted the Jim Crow laws, which extended their crimes into the mid-20th Century.

I think the American people would be FAR more open to the idea that states should be able to veto the federal government, than the idea that perhaps they shouldn’t elect their own senators directly. I think they would see the former as giving them more power, and the latter as taking power away from them.

But I think our first obstacle is convincing a majority of Americans that the federal government has seized too much power over the states to begin with, and then convincing them that it is so detrimental that something drastic needs to be done about it.

I think something DOES need to be done about it, but it’s much harder work than I know how to go about.

The criminality was with the Southern States, who violated the validly passed and ratified 14th Amendment, and instead instituted the Jim Crow laws, which extended their crimes into the mid-20th Century.

unclesmrgol on December 5, 2010 at 11:14 PM

The 14th amendment is valid, only if force of arms trumps rule of law.

It’s all academic anyway, the government stopped doing anything but paying lipservice to the Constitution anyway. Pass any amendment or repeal same, it’ll be ignored when convenient like the rest.

You realize Barack Obama was part of the congressional majority from 2007 on, right?

18-1 on December 5, 2010 at 9:59 PM

So in sum, your argument appears to be as follows:
“Barack Obama should be impeached by Congress because he has breached his duty to enforce the border, despite the fact that deportations have risen markedly during his Presidency while the number of illegal immigrants in the US has declined, because while Obama was a freshman Senator his votes precipitated the economic collapse of Fall 2008, thereby discouraging potential illegal immigrants from coming to America.”

Barack Obama should be impeached by Congress because he has breached his duty to enforce the border

No, no, no.

Barack Obama should be impeached by Congress because he has breached his duty to enforce the border, passed unconstitutional laws, refused to defend legitimate laws in court, refused to enforce legitimate laws, interfered in investigations of his cronies, given public funds to his allies and friends, grossly violated campaign finance laws, he has used public funds to purchase private companies for the benefit of allies and friends, he has intentionally falsified government documents, and he has attempted to squelch free speech by use of police powers.

But in fairness, this list is only off the top of my head, so I apologize for its brevity.

t’s all academic anyway, the government stopped doing anything but paying lipservice to the Constitution anyway. Pass any amendment or repeal same, it’ll be ignored when convenient like the rest.

Rebar on December 6, 2010 at 12:00 AM

This is a pretty fundamental issue we face. Our government only works when constrained by the Constitution. This requires those in the federal government to check each other, which they increasingly will not do.

And this is the beauty of moving more power back to the states. Since the system of checks and balances is broken in DC, add another check that is not part of DC.

The “Repeal Amendment” is not the way to handle this problem. The necessity of hooking together two thirds of states for every piece of objectionable legislation is overly cumbersome and perhaps unworkable. A less direct and more philosophical approach would be to return the election of U.S senators to the legislatures of the states. Then U.S. senators would be held accountable by state legislatures, and perhaps even term limited by the citizens of the particular states. Having senators directly accountable to the states meets the problem at the point of action of every law proposed and/or passed. The election of senators would be taken off the national stage and returned to the states. A side benefit would be that massive U.S. senator election campaign expenditures would disappear.

“It seems unlikely that any Congress would produce a two-thirds vote to create a states veto. That leaves only a Constitutional convention, which might indeed pass it — along with a lot of other, perhaps unpleasant, amendments.”

Congress didn’t like the 17th Amendment either, but it passed it to head off the States getting to the point of calling a Constitutional convention.

I point out that a Constitutional convention can only propose amendments, placing them before the States for ratification. Which Congress can do right now. In either case, an Amendment needs to be ratified by three fourths of the States to become law.

“Some believe that Constitutional conventions can be limited in scope, but we’ve only had one, and it replaced entirely the foundational document of the United States.”

Yes, but that convention wasn’t called under Article V (since the Constitution didn’t exist yet). And note, the Constitution had to be approved of by nine of the thirteen States, before it could come into effect, and then only between the States that had ratified it. Again, the Convention can only propose, the States have to ratify for the Amendments to pass.

“Those who want to see government restrained by the states would do better to repeal the 17th Amendment. ”

Yes. And eventually the 16th, also. The most likly scenario for getting the 17th repealed, is for the States to push it just like they did for its original adoption. Which was to start calling for a convention to place it before them.

There seems to be some serious misunderstandings about Article V of the Constitution. Two thirds of the states coming to together to propose an amendment is just about the same thing as two thirds of congress passing one. Neither is ratification. Under both circumstances three quarters of the states would have to ratify any proposed amendment to make it part of the constitution.

You really believe two thirds of the states that may agree on one item will agree to toss out a 2nd Amendment repeal because a handful of other states ask for it? No. Each proposed amendment would have to be agreed to by two thirds of the states.

The real problem is us. If we keep re-electing politicians who promise us more bread and circuses in exchange for the power the Constitution placed in our hands, we’ll end up like the Romans. It’s been nearly 100 years since we started voting for allowing the federal government to usurp the rights reserved to the states and the people.

I hate to be pessimistic, but I think the chances of reversing that long drift from federation to monolith are pretty small.

This may sound far fetched, but:
IMO, what’s needed is a national referendum, whereas the voters would have the right to vote up or down, or in and out bad congressional legislation, or executive orders. Why? Because at the present, Americans are being held hostage by Washington, with no recourse whatsoever!